That’s what Norah O’Donnell, co-host of CBS News This Morning, said earlier today when reporting on our #NullifyNSA campaign.

The entire CBS News report today was old-fashioned fact-based reporting on the effort, something that doesn’t happen too often these days. And while they didn’t take a position in favor, they also didn’t do what most mainstream media seems to do about state-level efforts -take an obvious position against. 7.5 years ago, when I registered the TenthAmendmentCenter.com domain name, I never would have expected this kind of legitimate coverage in the mainstream media.

I never would have expected it last year either. But it’s happening more and more these days.

WATCH IT (how this happened, below):

HOW THIS CAME ABOUT

After months of preparation last fall, researching and finding where NSA relies on help from states, drafting legislation, building a new website and creating a coalition of organizations, we had hoped to see five states introduce our 4th Amendment Protection Act this year. Maybe ten. If we were lucky.

The goal was to get the ball rolling, and start educating people who weren’t already on board with our message and work to realize that there is another path possible, not just waiting for Washington DC to fix Washington DC. We would work hard to get as many of those bills passed this year as possible. Then, come back in 2015 and strengthen those laws, plus get a few more introduced and passed. This would have to be a multi-year campaign against mass-spying by the federal government.

To help that happen, I contacted Jason Rink to help us put together a video which would explain the issue to the general public. We spent about $2000 to get a nice quality video done. (Jason, sorry if I’m advertising below-market costs for you!)

Those five states came pretty quickly, and then ten, and more. Currently, the tally is fifteen. All of this has generated some attention and interest. As each bill gets introduced in one state, we hear from people in another, and another.

THIS WEEK

But this week is when things really took off. In a surprise move, a handful of legislators in Maryland submitted a 4th Amendment Protection Act which targeted water and power to NSA Headquarters. That was a big enough story to get picked up by US News and top-linked at Drudge Report. From there, a number of alternative media sites covered the story. And then RT and Fox News did so as well.

That was Monday.

On Tuesday, Mike Maharrey (our national communications director) and I were talking about the pending introduction of the Utah 4th Amendment Protection Act. Knowing that the general public would consider this the “crown jewel” in comparison to other states, we wanted to do what we could to get it some media coverage around the country. But, since our best media contacts had already covered the Maryland story just one day earlier, it wasn’t looking like anyone wanted to cover it again on Wednesday in Utah.

So I mentioned to Mike that he should reach out to some reporters at The Guardian, where Glenn Greenwald used to work, and where he initially broke the NSA story last summer. Mike contacted some reporters who continued to follow the story and ended up on the phone with people there off an on throughout the day. They had been aware of what was happening on the state level, but were still cautious about reporting the Utah story.

At some point, Mike told me that they had said they would likely break the news on Wednesday, as long as it was exclusive. They did, and the story immediately got some significant worldwide attention.

YESTERDAY

Then, on Thursday morning, the Associated Press picked up the story and released it to the newswire, where ABC News covered it online. Later in the afternoon, a producer from CBS News contacted us. They had been researching the story and were fascinated by how far beyond Utah the effort was reaching. If it were just Utah, they likely wouldn’t have considered it a national story. But since 15 states had introduced legislation, they were looking at covering it – fast.

After a 20 minute chat with the producer, she asked if I’d be interested in coming to the studio for an interview – in 1-2 hours. She said she’d call back if they decided to do the story, and when thanking her, I mentioned that even if “today’s not the right day, we can do it another time.”

A little over an hour later, she called back, saying that if I could get to the studio – in Studio City – they’d like to do the story. I told her I’d need about 30 minutes to get ready and would be on my way. A quick, overpriced rental car – then ten miles and almost 90 minutes of driving in the heaviest LA rush hour traffic from Downtown LA (my apartment and home office) to Studio City up the 101 freeway, and we were ready to roll.

The result was the video you see above.

MORAL OF THE STORY: A CALL TO ARMS

Why am I sharing all this with you?

Just because I run the Tenth Amendment Center doesn’t mean we’re not all in this together. This is a group effort, and it takes a lot of time, energy, and money to make happen.

Without the money to keep a roof over my head, I couldn’t put the 60-80 hours a week in to run this operation. Without the money to have some support – Mike Maharrey and others wouldn’t have the time to help out. Without the volunteers that pick up the slack for some of the mountains of work our small paid team can’t get to, we’d be stuck in the mud. There’s so much to do and we barely get to about 10-20% of it. Without good people like Jason Rink and others willing to help us build creative projects to educate people, we wouldn’t have the reach we have.

And without doing this same thing relentlessly for over seven years now, we wouldn’t be in a position to get the legislation introduced, reported on around the globe, and eventually passed.

Every piece of the puzzle is an important piece, no matter how big or how small.

So please consider this a call to arms.

If you have an hour a week to help out, please do so. If you have $50 you can chip in, please send it our way. If you can help produce video, or write articles, or do research, let us know! If you have $100,000 – just think of what we’d accomplish.

At the top of our website, you’ll see a Latin phrase, Concordia res parvae crescunt. It means small things grow great by concord.

Every piece of the puzzle is an important piece, no matter how big or how small.

Please join in this effort, and help us turn this incredible story into one for the history books. With enough people rallying to support us, that will happen. I believe it with every ounce of my existence.

]]>http://tenthamendmentcenter.com/2014/02/14/this-is-an-incredible-story-lets-make-it-one-for-the-history-books/feed/2623498Stop DC by refusing to comply: Anti-Commandeering to Nullifyhttp://tenthamendmentcenter.com/2014/01/29/stop-dc-by-refusing-to-comply-anti-commandeering-to-nullify/
http://tenthamendmentcenter.com/2014/01/29/stop-dc-by-refusing-to-comply-anti-commandeering-to-nullify/#commentsWed, 29 Jan 2014 20:49:58 +0000http://tenthamendmentcenter.com/?p=23467With a number of states now considering bills to thwart the implementation of Obamacare or legislation to turn off resources like water and power to NSA facilities around the country, a number of political commentators are weighing in.

For example, Gail Kerr over at The Tennessean wrote about Sen. Mae Beavers’ bill to block Obamacare, “The U.S. Supreme Court ruled in 2012 that President Barack Obama’s Affordable Care Act is constitutional. State laws cannot trump federal laws.”

Jacob Gershman at the Wall Street Journal’s Law Blog suggested the same before having to retract shortly after.

The knee-jerk reaction of many “experts” is to claim that “federal laws trump state laws when they conflict” whenever they write about a bill designed to take action against a federal act.

Many of them don’t have a clue what they’re talking about.

THE LEGISLATION

The bills in question are not coming into “conflict” with federal laws at all; they seek to direct state agents and employees to stop participating in the enforcement of various federal acts.

In Washington State, for example, House Bill 2272 would ban all public employees from participating in any actions which aid the National Security Agency in its mass surveillance programs. While this would immediately ban the use of warrantless data in court proceedings in the states, it has even more significant impact in a state like Washington, because there is a physical NSA facility there which relies on third parties, such as state agencies, to provide electricity or water to stay operational.

A similar bill has been introduced in Tennessee, where the NSA’s encryption-breaking facility at Oak Ridge resides. And another is expected to be introduced soon in Utah, where the new NSA data center requires as much as 1.7 million gallons of water every day to cool the super computers. That water is being supplied by the state of Utah.

In a rallying cry which sounds surprisingly simple, supporters know that no water = no NSA data center.

Back in Tennessee, Senate Bill 1888 states, in part, “No state entity shall establish or administer, or assist in establishing or administering, any specific regulatory scheme to operate the federal Patient Protection and Affordable Care Act of 2010, or any subsequent federal amendment to such act, in this state.”

Analyzing such state bills, Fox News Senior Judicial Analyst Judge Andrew Napolitano considered them an effective strategy against the Affordable Care Act. “If enough states do this, it will gut Obamacare because the federal government doesn’t have the resources…to go into each of the states if they start refusing,” he said.

In Florida yesterday, a bill was introduced in the state house to ban the entire state from enforcing or assisting in the enforcement of federal gun control measures – all of them – past, present, or future.

Napolitano last year urged states to do just this, suggesting that the federal government simply does not have the manpower to carry these measures out. Such a bill in a single state, he said, would make “federal gun laws nearly impossible to enforce.”

THE LEGAL DOCTRINE

Is this legal?

In short, absolutely, the state laws do not come into conflict with federal laws in any legal sense.

All of these proposals are based on the widely-accepted legal principle known as the “anti-commandeering doctrine.”

This means the federal government cannot require a state to carry out federal acts. The federal government can pass a law and try to enforce it, but your state isn’t required to help them.

1842 Prigg: The Court held that states weren’t required to enforce federal slavery laws.

1992 New York: The Court held that Congress couldn’t require states to enact specified waste disposal regulations.

1997 Printz: The Court held that “the Federal Government may not compel the States to enact or administer a federal regulatory program.”

2012 Sebelius: The Court held that the federal government could not require the States to expand Medicaid, even under the threat of losing federal funding.

As constitutional scholar Randy Barnett told National Journal recently, “State governments are free to refrain from cooperating with federal authorities if they so choose. In general, states cannot attack federal operations, but that’s not the same as refusing to help.”

These noncompliance bills do not run afoul of the Supremacy Clause, even if one were to claim that all federal laws are supreme, instead of just those made “in pursuance” of the delegated powers in the constitution.

Claiming they do is like claiming people who are boycotting a business are actually setting fire to it instead of just choosing not to shop there.

It’s just as absurd. Saying no to participation is far different than a physical standoff, both legally and practically.

CAN IT WORK?

Simply put, the federal government cannot force state or local governments to do the bidding of the federal government. Such a tactic is an extremely effective way to stop a federal government busting at the seams.

Even the National Governors Association admitted the same recently when they sent out a press release noting that “States are partners with the federal government in implementing most federal programs.”

That means states can create impediments to enforcing and implementing “most federal programs.”

James Madison, the “Father of the Constitution,” advised this very tactic. Madison supplied the blueprint for resisting federal power in Federalist 46. He outlined several steps that states can take to effective stop “an unwarrantable measure,” or “even a warrantable measure” of the federal government. Anticipating the anti-commandeering doctrine, Madison called for “refusal to cooperate with officers of the Union” as a method of resistance.

Recognizing that many, if not most, federal programs rely heavily on this kind of cooperation, by enacting anti-commandeering laws on various issues around the country, they can have the effect of a practical nullification – rendering federal acts “nearly impossible to enforce.”

]]>http://tenthamendmentcenter.com/2014/01/29/stop-dc-by-refusing-to-comply-anti-commandeering-to-nullify/feed/723467No, the Feds are not going to stop Federal Spyinghttp://tenthamendmentcenter.com/2014/01/03/no-the-feds-are-not-going-to-stop-federal-spying/
Fri, 03 Jan 2014 16:26:23 +0000http://tenthamendmentcenter.com/?p=23393Barely a week after Judge Leon of the DC District Court held the NSA mass data-collection program to be “likely unconstitutional,” District Judge William H. Pauley III in Manhattan took the view of both Barack Obama and Dianne Feinstein, that NSA collection of every online activity somehow does not violate the Fourth Amendment.

Focusing mostly on need and effect rather than the text of and Founders’ intention for the Fourth Amendment, Pauley said the mass collection of phone data “significantly increases the NSA’s capability to detect the faintest patterns left behind by individuals affiliated with foreign terrorist organizations. Armed with all the metadata, NSA can draw connections it might otherwise never be able to find.”

While coalitions of powerful legal organizations on both the left and right are spending considerable time, energy and money on the court system as a way to stop what many Americans consider to be “Orwellian mass-spying” by the NSA, this latest ruling indicates that it is very unlikely that the courts will overturn anything.

Supporters of the court effort, though, point to Judge Leon’s recent ruling as a cause for hope. But Tenth Amendment Center national communications director suggested that it would only be a short-term victory for Fourth Amendment advocates.

“If we’re resting all our hopes on a guy who says that keeping track of everything you do online is just ‘likely unconstitutional,’ we’re in pretty big trouble,” said Maharrey.

“On top of it, most legal experts hold the view that the appeals court isn’t even going to agree with Leon’s views,” he continued.

At Lawfare, Benjamin Wittes of the Brookings Institution said that he “can’t count five votes on the Supreme Court” that would take the same position as Judge Leon.

Some grassroots organizations have pinned their hopes on getting a bill through Congress to rein in the NSA. The USA Freedom Act, co-authored by Senator Patrick Leahy (D-VT) and Representative Jim Sensenbrenner (R-WI), has garnered support from large grassroots organizations across the political spectrum as the best option.

Kurt Opsahl and Rainey Reitman of the Electronic Frontier Foundation consider the bill to be a good start, but pointed out that it would not do what many grassroots supporters think it would do, stop the NSA from its current surveillance and data collection programs. “The bill only addresses a small portion of the problems created by NSA spying and overreaching government secrecy,” they wrote in a recent analysis of the legislation.

Maharrey suggested that the bill does not have a chance to pass. “First of all, the bill is not going to stop the NSA, and more importantly, the odds of it passing are almost zero,” he said.

Maharrey noted that in order to become law, the bill would have to first get past Senator Dianne Feinstein, who is the powerful chair of the Senate Intelligence Committee. Any legislation restricting the NSA would need her tacit approval to even get a hearing. And President Barack Obama has indicated that it is his view the NSA is not doing anything wrong.

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“It’s important to note that in all the reviews of this program that have been done, in fact, there have not been actual instances where it’s been alleged that the NSA in some ways acted inappropriately in the use of this data,” said the President at a press conference on Dec. 20.

A coalition of organizations is pressing states to take action to thwart NSA spying at OffNow.org. Their proposal would do what Maharrey called “an end-run around Washington DC” by passing state-level laws that would make it difficult for the NSA to continue its current programs.

Maharrey believes this might be the only way to get something accomplished.

“I don’t trust a court system who thinks I should be taxed for doing nothing to stop NSA spying. And I sure don’t trust a congress who wrote that law in the first place to do so eit

James Madison wrote in Federalist 46 that refusing to cooperate with unconstitutional federal acts would create “serious impediments” and “obstructions which the federal government would hardly be willing to encounter.”

Yesterday, the people of Colorado nullified Washington DC and its unconstitutional federal laws banning marijuana – in a big, big way.

Thousands of people lined up at new recreational marijuana stores around the state on New Year’s Day, taking part in a business relationship that the federal government has tried to stop more than ever. A friend in Denver wrote:

“So one of the stores across the street from my house (next to Chipotle) is legally selling marijuana. It opened at 8am. There are approximately 2000 people in line at 8:30. Happy New Year.”

This isn’t happening because President Obama is friendly to the issue. He’s not.

It’s happening because state nullification efforts are overwhelming federal resources.

Statistics prove that the Obama administration has tried harder than any president – ever – to stop the states from nullifying federal power on weed. The DOJ has engaged in more enforcement actions than ever. And they’ve spent more money – in multiples – than any previous president.

The fact, though, is that when 20+ states take steps to nullify federal “laws” – the states win.

The genie is out of the bottle and she won’t ever go back in. The feds have lost and they know it. No matter how Holder and the DEA couch their words in an attempt to maintain an illusion of control, state actions continue to effectively nullify these unconstitutional marijuana “laws.”

On top of it, they simply don’t have the resources to do anything about it. As Mike Maharrey noted in a recent article, the feds don’t even have a chance to stop the nullification train that’s running them over.

Americans for Safe Access calculates that a direct raid on a medical marijuana dispensary costs around $300,000 and investigative costs run about $12 million per raid. That means the DEA just spent roughly $3.6 million on the raids themselves – plus investigative costs! Even if we play generous and assume that all 12 raids fell within the same investigative umbrella, that still means the DEA just blew $15.6 million.

I can’t emphasize this enough: 3 percent. In one city. In one state.

The annual DEA budget runs about $2.87 billion. It wouldn’t take too many investigations and raids to wipe that out. In fact, shutting down all the dispensaries in Denver alone would cost more than twice the total DEA budget.

Make no mistake, the entire war on drugs, including marijuana prohibition, rests on the same authority as all of the other undeclared wars waged by the federal government in the last 75 years.

None.

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The constitution delegates no authority for the federal government to wage drug war. Drug policy should rightly remain an object left to the states and the people. Doubt this? Then ask yourself why it took a constitutional amendment to enact federal prohibition of alcohol.

In his original draft of the Kentucky Resolutions of 1798, Thomas Jefferson wrote, “Where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy.” Washington and Colorado, along with all of the states now running medical marijuana programs did just that. They exercised their will, ignored the federal mandates and acted with the support of the people in their states.

And it’s working.

This should be seen as a blueprint for victory. Time will tell if advocates for other causes will have the same kind of courage.

]]>23391Video: 2013 Year in Reviewhttp://tenthamendmentcenter.com/2013/12/31/video-2013-year-in-review/
http://tenthamendmentcenter.com/2013/12/31/video-2013-year-in-review/#commentsTue, 31 Dec 2013 18:13:19 +0000http://tenthamendmentcenter.com/?p=233892013 was very special year for the Tenth Amendment Center. We reached new heights, got hit with relentless, well-funded attacks from our enemies – but pushed on, and on, and on.

Our year in review video shares some of the ups and downs – and a some of the behind the scenes, too.

From our family to yours – thanks for a great 2013. Let’s work together for liberty in 2014 and beyond!

]]>http://tenthamendmentcenter.com/2013/12/31/video-2013-year-in-review/feed/1323389Even after recent good news, DC will never stop NSA spyinghttp://tenthamendmentcenter.com/2013/12/21/even-after-recent-good-news-dc-will-never-stop-nsa-spying/
http://tenthamendmentcenter.com/2013/12/21/even-after-recent-good-news-dc-will-never-stop-nsa-spying/#commentsSat, 21 Dec 2013 18:33:21 +0000http://tenthamendmentcenter.com/?p=23371Privacy advocates this week have been jumping for joy. Two “big wins” happened in just a matter of days.

1. Judge Leon in the DC District held the NSA spying program to be likely unconstitutional. (read about it and see the whole court opinion here)

He “enjoined” the entire program, but “stayed” his own decision, pending appeal.

In layman’s terms, he put a stop to the program, but then put his own stop on hold. He then kicked the can down the road, handing it off to the next court to decide. In essence, he passed the buck.

Issuing an opinion that NSA mass surveillance is “constitutional” under the 4th Amendment would’ve made Leon a serious constitutional-crook, at best. But he still did the very least he could do – issued his opinion, but took no steps to stop the program, even temporarily, which he could have done.

More importantly, don’t expect the next court, or the Supreme Court, to actually have the opinion that mass NSA surveillance is unconstitutional and will need to stop. The odds of this happening are extremely low.

While it’s easy to disagree constitutionally with much of legal expert Orin Kerr’s understanding on the issue, he provides some great insight as to how the higher courts will view this case, and it doesn’t look good for those who want to see the NSA stopped. Even worse is legal expert, and national security hawk, Ben Wittes, who has some serious insight as to how the Supreme Court will act on this – here.

These are the most important “takeaways” from the recent court case:

A) NSA spying has not been stopped. It continues in full force, and
B) While it’s possible the higher courts will stop it, don’t count on it.

REVIEW PANEL

In a surprise move, the NSA review panel – which was filled with government insiders – actually advised Obama to strip the power to do mass surveillance in its current form. But there’s a big problem with that.

He won’t.

After the panel recommendations, he said this:

“It’s important to note that in all the reviews of this program that have been done, in fact, there have not been actual instances where it’s been alleged that the NSA in some ways acted inappropriately in the use of this data.”

Barack Obama believes that the NSA is NEVER acting inappropriately.

He’ll never stop the spying.

In other words, the USA Freedom Act, the bill in congress that many privacy advocates are putting all their time and energy into, is doomed as well.

If it even has a chance of getting past Dianne Feinstein, who is the powerful chair of the Senate Intelligence Committee, Obama supports the NSA doing what it’s doing, so you just can’t expect him to sign a bill to stop it.

GOOD NEWS AND BAD NEWS

And now, to sum it all up.

Bad news first. The courts, the review panel, congress – all efforts to pass bills like the USA Freedom Act – all these efforts are virtually doomed.

GOOD NEWS – There’s clarity in our path.

If you want something to happen, your only resort is the plan to #NullifyNSA and resist on a state and local level.

TAKE ACTION

Take these steps today to help stop NSA spying in your state

1. Get the model 4th Amendment Protection Act for your state (pdf):HERE

2. Contact your STATE representative/assemblyperson AND State Senator. Strongly, but respectfully, encourage them to introduce the act for your state. A phone call is much more powerful than an email. Or do both. Contact info HERE.

3. Join the coalition. Are you part of a grassroots group? Encourage your group’s leadership to sign on in support of the coalition here: http://offnow.org/coalition

]]>http://tenthamendmentcenter.com/2013/12/21/even-after-recent-good-news-dc-will-never-stop-nsa-spying/feed/723371James Madison on How to Enforce the Constitutionhttp://tenthamendmentcenter.com/2013/12/15/james-madison-on-how-to-enforce-the-constitution/
Sun, 15 Dec 2013 08:01:32 +0000http://tenthamendmentcenter.com/?p=23351A good place to start in determining how to enforce the Constitution is with the guy who’s commonly referred to as the “Father of the Constitution.” While there’s some debate that James Wilson was actually far more fitting of that title, Madison was obviously quite influential.

The essential question: When the federal government violates the constitution, what do you do about it?

Here’s what Madison had to say in Federalist #46. The Influence of the State and Federal Governments Compared:

“Should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps a refusal to cooperate with officers of the Union, the frowns of the executive magistracy of the State; the embarrassment created by legislative devices, which would often be added on such occasions, would oppose, in any State, very serious impediments; and were the sentiments of several adjoining States happen to be in Union, would present obstructions which the federal government would hardly be willing to encounter.”

Let me translate. Madison said that when the federal government passes an unconstitutional measure there are powerful methods to oppose it – amongst the people and in the states. He also pointed out that those methods were available even for warrantable, that is constitutional, measures.

Madison told us of four things that should be done to resist federal powers, whether merely unpopular, or unconstitutional.

1. Disquietude of the people – Madison expected the people would throw a fit when the feds usurped power – even using the word “repugnance” to describe their displeasure. That leads to the next step.

2. Refusal to co-operate with the officers of the Union – Noncompliance. We preach it every day at the Tenth Amendment Center. Madison apparently knew what we know today. The feds rely on cooperation from state and local governments, as well as individuals. When enough people refuse to comply, they simply can’t enforce their so-called laws.

3, The frowns of the executive magistracy of the State – Here Madison envisions governors formally protesting federal actions. This not only raises public awareness; executive leadership will also lead to the next step – legislative action.

4. Legislative devices, which would often be added on such occasions – Madison keeps this open-ended, and in the years soon after, which I’ll cover shortly, we learn how both he and Thomas Jefferson applied this step.

Madison also told us that if several adjoining States would do the same it would be an effective tool to stop federal acts. To repeat, he said that doing this “would present obstructions which the federal government would hardly be willing to encounter.”

Judge Andrew Napolitano agreed recently and said that people need to stop enforcing unconstitutional federal laws. He also said that if you could get an entire state doing this, it would make federal laws “nearly impossible to enforce.”

What’s important to note here, are some glaring omissions. The powerful means that Madison told us would be used to oppose federal power successfully did NOT include federal lawsuits in federal courts. He also did NOT include “voting the bums out” as a strategy, either.

FIRST RESPONSE

Compare that with how people generally respond to what they consider unconstitutional or unpopular federal acts today.

The first thing I tend to hear from people who are opposed to a federal act is the “vote the bums out” mantra. We’ll fire congress, right?

Or some people tell us we have to sue and let the courts decide.

I’ve got some news for you. There’s nothing from the founders – anywhere – in which they tell us that our first response to extreme, repeated violations of the constitution and liberty is to vote the bums out, or sue the feds in federal court. Nothing.

LEGISLATIVE DEVICES

Thomas Jefferson followed up on this in 1798 with the same kind of advice. That year, the Adams administration passed a wildly unconstitutional attack on the freedom of speech with the Alien and Sedition Acts. In response, while sitting as vice-president, Jefferson secretly drafted the Kentucky Resolutions, and here’s a little of what he wrote:

“The several states composing the united states of america are not united on a principle of unlimited submission to their general government.”

“where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy”

“that every State has a natural right in cases not within the compact to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them”

Madison was consistent in his views on this. In 1798, he also drafted and help pass something known as the Virginia Resolutions, a state-level “legislative device” in response to the Alien and Sedition Acts. Here’s a key part:

in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.

Like Madison advised in Federalist #46, both he and Thomas Jefferson advised a state-level response to dangerous federal acts. In 1798, neither of them even mentioned voting or lawsuits.

Jefferson told us that a “nullification is the rightful remedy.” And Madison told us that states are “duty-bound to interpose.”

When Daniel Webster called on these same principles in response to military conscription plans during the war of 1812, he said:

“The operation of measures thus unconstitutional and illegal ought to be prevented by a resort to other measures which are both constitutional and legal. It will be the solemn duty of the State governments to protect their own authority over their own militia, and to interpose between their citizens and arbitrary power. These are among the objects for which the State governments exist; and their highest obligations bind them to the preservation of their own rights and the liberties of their people”

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Here’s the bottom line. You are not supposed to wait 2 or 4 years for some new politicians to get in office and give your permission to be free. You are not supposed to wait 2 or 4 or 6 years for some federal court to tell you, “ok, you be free now.”

You are supposed to stand up resist, refuse to comply and nullify unconstitutional federal acts – as soon as they happen.

All the money and time you throw at firing congress or winning in federal court will never, ever work – unless you start resisting right here in your state. And, that resistance needs to be your first response, not your last.

]]>23351War and the Constitution: Declare vs Wagehttp://tenthamendmentcenter.com/2013/12/07/war-and-the-constitution-declare-vs-wage/
http://tenthamendmentcenter.com/2013/12/07/war-and-the-constitution-declare-vs-wage/#commentsSat, 07 Dec 2013 11:38:31 +0000http://tenthamendmentcenter.com/?p=23331The Constitution is quite clear on war power. Congress has the power to determine IF the country will wage offensive war and against WHOM. Once that decision is made by the Congress, the President is in charge of waging that war.

The power in question is delegated in Article I, Section 8, Clause 11 of the Constitution:

[Congress shall have Power…] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

THE FOUNDERS

As I wrote in an early-2007 article, Article II, Section 2 of the Constitution, on the other hand, refers to the President as the “commander-in-chief of the army and navy of the United States.” What the founders meant by this clause was that once war was declared, it would then be the responsibility of the President, as the commander-in-chief, to direct the war.

Alexander Hamilton supported this when he said that the President, while lacking the power to declare war, would have “the direction of war when authorized.” Thus, under the Constitution, the President, acting without a Congressional declaration of war, is authorized only to repel invasion and sudden attacks.

Pre-emptive strikes and undeclared offensive military expeditions are not powers delegated to the executive branch in the Constitution, and are, therefore, unlawful. Thomas Jefferson stated this quite eloquently when, in 1801, he said that, as President, he was “unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense.”

As an aside, it’s also important to note that no federal branch has the constitutional authority to transfer powers delegated to it to another branch. There’s nothing in the text of the Constitution or the views of the Founders which would support this absurd notion. The Founders created a system of government where certain levels of government were responsible for certain powers, and not the others. A primary reason for this was a distrust of executive power.

War was something that was a big part of the Founders’ distrust of power. James Madison warned us that the power of declaring war must be kept away from the executive branch when he wrote to Thomas Jefferson:

“The constitution supposes, what the history of all governments demonstrates, that the executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care vested the question of war in the legislature.”

There simply is no debate. Congress, not the President, decides if the country will go to war.

TWISTED DEFINITIONS

As they did in with the US war against Libya, those violating these strict constitutional limitations will likely refer to an attack on Syria as something other than “war.” But, changing the words they use to describe their actions doesn’t change the constitutional ramifications.

Under the Constitution, a war is a war whether you call it a war or something else.

Founding-Era dictionaries and other sources, both legal and lay, tell us that when the Constitution was approved, “war” consisted of any hostilities initiated by a sovereign over opposition. A very typical dictionary definition was, “the exercise of violence under sovereign command against such as oppose.” (Barlow, 1772-73). I have found no suggestion in any contemporaneous source that operations of the kind the U.S. is conducting were anything but “war.”

The Founders’ favorite authority on international law, Vattel, divided wars into three principal categories: defensive wars, offensive just wars, and offensive unjust wars. A nation fought a defensive war when it responded to an invasion. It fought a just offensive war when it responded to an infringement of its rights short of invasion. It fought an unjust offensive war if it attacked another country even though that other country had not infringed its rights. Examples of unjust offensive wars were those fought for conquest or to limit an innocent neighbor’s power.

A defensive war did not require a declaration. A just offensive war did require one, although it might be called something other than “declaration of war.” The declaration triggered certain consequences under international law, but Vattel says its principal purpose was to give the other country a last chance to correct the injury it was inflicting. Because unjust wars were those launched by a country that had not suffered legal injury, it follows that “declarations of war” issued by an aggressor were at least partially defective.

Natelson also suggested that, even if declared, the government has “no constitutional power to wage an unjust war.”

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The last time Congress constitutionally-declared war was on December 11, 1941; against Germany, in response to its formal declaration of war against the United States. This resolution was quickly accomplished with a statement that was well-under one page in length; yet it still clearly delineated who the enemy was, and what was to be done. Three days earlier, and one day after being attacked at Pearl Harbor, Congress declared war on Japan with a similar clarity. Both actions resulted in a clear-cut military victory.

The short version? Unless fending off a physical invasion or attack, the president is required to get a Congressional declaration of war before engaging in military hostilities in another country.

Since it’s unlikely that the executive branch will limit its own power, and there’s very little evidence that the congress will use the power of the purse to do so either, it’s going to be up to the people of the states to make that happen whether the feds want us to or not.

]]>http://tenthamendmentcenter.com/2013/12/07/war-and-the-constitution-declare-vs-wage/feed/123331How States Can Protect the 4th Amendment from NSA Abusehttp://tenthamendmentcenter.com/2013/11/23/how-states-can-protect-the-4th-amendment-from-nsa-abuse/
http://tenthamendmentcenter.com/2013/11/23/how-states-can-protect-the-4th-amendment-from-nsa-abuse/#commentsSat, 23 Nov 2013 08:33:29 +0000http://tenthamendmentcenter.com/?p=23284Originally published at Truthout.org

In her 2004 Brooklyn Law Review article, Ann Althouse offered some powerful suggestions on how to resist “anti-terrorism” powers, such as the Patriot Act, and should be seen as a guide to resisting NSA spying:

The fight against terrorism has raised concerns that the federal government has overreached its legitimate power. Concerns about racial profiling, invasions of privacy, unreasonable searches, and infringement on free speech have fueled a political movement, led by groups such as the American Civil Liberties Union and the Bill of Rights Defense Committee (BORDC), urging state and local government to adopt resolutions directing their officials not to participate in at least some aspects of the antiterrorism effort.

More on applying this to the NSA in a moment. First, is this legal?

The Doctrine

The ACLU and BORDC resolutions against the Patriot Act (and subsequent ACLU-backed state laws refusing to comply with the 2005 REAL ID Act) were based on a widely accepted legal principle known as the “anticommandeering doctrine.”

This means the federal government cannot require a state to carry out federal acts. The federal government can pass a law and try to enforce it, but your state isn’t required to help them.

* 1842 Prigg: The court held that states weren’t required to enforce federal slavery laws.

* 1992 New York: The court held that Congress couldn’t require states to enact specified waste disposal regulations.

* 1997 Printz: The court held that “the federal government may not compel the states to enact or administer a federal regulatory program.”

Under this doctrine, Althouse noted that “state and local government officials, if they have the nerve, will be able to decline to carry out the anti-terrorism tasks Congress or the president attempts to assign to them.”

Applied to NSA

This can have a significant impact on the NSA’s ability to continue its mass-spying programs.

The NSA is already unable to install some costly and sophisticated new equipment. At minimum, the problem could produce disruptions leading to outages and power surges. At worst, it could force a virtual shutdown of the agency.

To get around the physical limitation of the amount of power required to monitor virtually every piece of communication around the globe, the NSA started searching for new locations with independent resources.

A location was chosen in San Antonio because of the independent power grid in Texas. The new Utah Data Center was chosen for access to cheap utilities, primarily water. The water-cooled supercomputers there require 1.7 million gallons of water per day to function.

That water is being supplied by a political subdivision of the State of Utah. Under the anticommandeering doctrine, Utah isn’t required to provide that water.

No water = No NSA data center.

But it’s not just Utah, and it’s not just water. The war on drugs, for example, is a major benefactor of NSA data collection. According to the Electronic Frontier Foundation (EFF), the DEA’s Special Operations Division works closely with the NSA, passing “tips” along to local law enforcement and instructing them to cover their tracks so the public doesn’t learn where the information came from.

EFF calls this “intelligence laundering,” which flat-out “bypasses the Constitution.”

The Act

Following the lead of the ACLU and BORDC, model legislation to refuse cooperation with the NSA is now available for introduction in your state. The 4th AmendmentProtection Act would ban states like Utah from providing water, or Texas from providing electricity, to NSA data centers. It would also ban law enforcement from receiving “tips” from the DEA’s special operations division.

In addition, the Act prevents state-run universities from partnering with the NSA. Currently there are 166 so-called “Centers of Academic Excellence” around the country. These schools are major research and recruiting centers for the agency.

Corporations could find themselves in trouble, too, under the proposed Act:

Any corporation or person that provides services to or on behalf of this state and violates the prohibitions of Section 2 of this act shall be forever ineligible to act on behalf of, or provide services to, this state or any political subdivision of this state.

As a result, corporations like Georgia Power, Rocky Mountain Power, Big-D Construction or Intercontinental Hotels just might give pause before signing a new contract to provide services to the NSA.

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Can It Work?

This same process was used effectively by northern abolitionists in resistance to the Fugitive Slave Act of 1850. Today, states like Washington and Colorado are helping end the war on cannabis by refusing to comply with federal prohibition.

People always say that I didn’t give up my seat because I was tired, but that isn’t true. I was not tired physically, or no more tired than I usually was at the end of a working day. I was not old, although some people have an image of me as being old then. I was forty-two. No, the only tired I was, was tired of giving in.

The National Security Agency looks at literally millions of phone records. It captures millions of emails. It sifts through millions of megabytes of private data.

And it does this all without following the requirements of the Fourth Amendment.

It can be stopped. How that can be done in a moment, but first, a closer look at current strategies and roadblocks.

DEFENDING ITSELF

In a recent press release, one spokesperson went so far as to call criticism of the NSA a “disservice to the nation.”

NSA conducts all of its activities in accordance with applicable laws, regulations, and policies – and assertions to the contrary do a grave disservice to the nation, its allies and partners, and the men and women who make up the National Security Agency

It shouldn’t be any surprise that the NSA would claim operates legally. No agency is likely to do otherwise.

More importantly though, under the Constitution, executive agencies don’t get to determine the lawfulness of their own operations.

Thomas Jefferson put it this way:

“The government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers”

NOT GONNA HAPPEN

Many Americans consider the actions of the NSA to be unconstitutional, but feel helpless to stop it. Here are a few troubling facts.

The NSA has absolutely no intention of stopping what they’re doing. None.

Congress is either happy about this, or too weak to do anything about it.

A federal court system that doesn’t seem to have an issue with a “tax” on inactivity it not likely to have a problem with these actions, either.

Some members of Congress on both sides of the aisle have introduced bills in an effort to bring the NSA under control.

A hard truth: waiting for federal employees to stop the federal spy machine is a fool’s game.

ANOTHER OPTION?

In The Art of War, Sun Tzu advised this strategy: “Attack him where he is unprepared, appear where you are not expected.”

The NSA is absolutely expecting opponents to “attack” their actions in the same places they always do: Congress and the courts. And they have a strong defense in place.

They’ve got the chair of the Senate Intelligence Committee on their side. They can point to Executive Order 12333 as another “authorization” to do the spying that they want in case the unthinkable happens and Congress repeals parts of all of the PATRIOT Act or FISA. And federal judges almost always allow for expansive federal power when “national security” is used as the justification. That’s how federal “indefinite detention” powers remain law today.

In other words, no matter what is done through the conventional channels, NSA spying is going to continue.

On the other hand, taking Sun Tzu’s advice can be very effective.

ACHILLES HEEL

There is, in fact, another point Americans can target to push back against the NSA. The agency actually has an Achilles Heel.

Resources.

In 2006, it was reported that the NSA had maxed out capacity of the Baltimore-area power grid.

“The NSA is already unable to install some costly and sophisticated new equipment. At minimum, the problem could produce disruptions leading to outages and power surges.

At worst, it could force a virtual shutdown of the agency.”

To get around the physical limitation of the amount of power required to monitor communication around the globe, the NSA started searching for new locations with independent resources. .

The NSA chose the new Utah Data Center due to the access to cheap utilities, primarily water. The water-cooled supercomputers there require 1.7 million gallons of water per day to function.

That water is being supplied by a political subdivision of the State of Utah. And they can actually turn it off.

No water = No NSA data center.

The situation is the same at many other locations around the country (there are at least 10), for example, Texas. The NSA chose the new data center in San Antonio not only for its close proximity to a new Microsoft data center, but because of the Texas power grid – providing electricity independently from the rest of the country.

That electricity is coming from a political subdivision of the State of Texas.

They can turn it off, too.

No electricity = No NSA data center.

LEGAL PRINCIPLE

The strategy rests on what is known as the “anti-commandeering doctrine.”

This is the principle that nothing in the Constitution requires states to help the federal government violate your rights.

In fact, Supreme Court opinion has backed this up in four significant cases going back to 1842. They are:

1842 Prigg: The Court held that states weren’t required to enforce federal slavery laws.

1992 New York: The Court held that Congress couldn’t require states to enact specified waste disposal regulations.

1997 Printz: The Court held that “the Federal Government may not compel the States to enact or administer a federal regulatory program.”

2012 Sebelius: The Court held that states couldn’t be required to expand Medicaid even under the threat of losing federal funding.

These judicial opinions are consistent with the blueprint for state-level action that James Madison gave us in Federalist #46. Among thefour steps he advised as “powerful means” to oppose federal power was a “refusal to cooperate with officers of the Union.”

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ACTION ITEMS

Denying the NSA necessary cooperation from state and local agencies is a constitutionally-valid strategy.

Armed with that knowledge, there are a number of steps you should be taking in your state right now.

LEGISLATION: Get a copy of the state-level 4th Amendment Protection Acthere.

CONTACT: Your state senator and representative today. Strongly, but respectfully, encourage them to introduce the act in your State. (tip: a phone call will have far more impact than an email). Contact infohere.

Pushing back against the NSA won’t be easy. But Americans cannot sit idly by and watch an agency that is supposed to defend them shred the very fabric it was woven out of.

“Instead of sitting down satisfied with the efforts we have already made, which is the wish of our enemies, the necessity of the times, more than ever, calls for our utmost circumspection, deliberation, fortitude, and perseverance.”-Samuel Adams